1,720,976 research outputs found
Life in the Fast Lane: Dynamic Sentencing Developments Across the Nation
No full textIn the summer of 2022, various aspects of the federal sentencing world seemed frozen in time. The U.S. Sentencing Commission couldn’t respond to vital legislative or practical developments because it lacked a quorum, as it had for more than three years. Meanwhile, federal prosecutors were operating under aging, interim charging, pleas, and sentencing guidelines, issued barely a week after President Biden took office, that revived former Attorney General Holder’s 2010 policies. But, in just a matter of months, the federal system has gone from a holding pattern to warp speed. When considered along with continued, thoughtful sentencing developments in the states, American sentencing law and practice in early 2023 could be seen as now living life in the fast lane
Guidance from Above and Beyond
Full text linkCriminal sentencing does not just happen in the courtroom. Some key sentencing decisions happen long before court convenes, while other critical sentencing decisions take place long after court adjourns. Although the public focuses primarily on the black-robed figure wielding the gavel, sentencing reflects decisions by a veritable parade of actors, including legislators, sentencing commissioners, police officers, prosecutors, juries, trial judges, appellate judges, and executive branch officials. All of these people guide and constrain the sentencing process. Through their official actions, they inform each other about what is happening in their corners of the sentencing drama, and prod their counterparts to respond appropriately. As the Supreme Court has written, the federal constitutional design assumes that the branches of government “converse with each other on matters of vital common interest.”
Many of the points of communication, leverage, and decision that operate before the trial judge imposes the sentence—including the congressionally set maximum for the offense, mandatory minimums, and the Federal Sentencing Guidelines—have played a central role in the policy and scholarly debate following the Sentencing Reform Act of 1984. Less discussed over the past two decades—but just as vital—are several devices that can provide important post-sentencing guidance, communication, and action. These mechanisms can enhance a sentencing system’s vitality by providing guidance from “above and beyond.”
This Article explores three post-sentencing tools, and provides advice to Congress on how they could be used. Part I advocates for the meaningful appellate review of sentences. There are various ways to organize such review, and it remains unclear how the federal system will operate after the dust settles from the Supreme Court’s recent decisions in Blakely v. Washington and United States v. Booker. Regardless, Congress can build on the recognized value of sustained and substantial interchange between sentencers by taking tangible steps to improve the communicative role of appellate review and to reinforce its structural framework. For example, Congress can work to reduce appellate conflict over the Guidelines by creating a special appellate court, the Court of Appeals for Sentencing, which would resolve important questions of sentencing law.
Part II explores the role of discretionary parole release authority and concludes that a modest version of this device can offer important benefits in a post-Booker world. It observes that a properly structured indeterminate sentencing scheme, which by definition includes discretionary parole release, would both enable Congress to create a more tightly controlled front-end sentencing system if it so chose, and to institutionalize communication from the back-end sentencers.
Finally, Part III examines the possibility of Extended Sentence Review (ESR) for certain long-serving, older offenders. This type of hybrid review—part clemency and part discretionary parole release—may have a significant, but limited part to play in modern sentencing. At a systemic level, ESR, by evaluating past sentencing decisions, would offer insights and lessons that current sentencers can use to craft sentencing policy today. Nevertheless, responsible sentencing decisions at the front-end should restrict the need for substantial ESR activity
Reform in Motion: The Promise and Perils of Incorporating Risk Assessments and Cost-Benefit Analysis into Pennsylvania Sentencing
Full text linkActuarial risk assessment and cost-benefit analyses have become increasingly commonplace in many areas of criminal justice. The integration of these tools in sentencing represents a natural and logical next step. In Pennsylvania, the pace of this development has recently accelerated, as reform legislation now mandates the inclusion of actuarial methodologies into the sentencing architecture. This article considers the promises and the perils of this integration in light of Pennsylvania’s sentencing structure. The authors conclude by presenting four key questions that legislators in Pennsylvania- as well as other jurisdictions beginning to addresses the use of empirical data in sentencing- should consider before implementation
Going Beyond Counting First Authors in Author Co-citation Analysis
Full text linkThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
The Next Era of Sentencing Reform
Full text linkThis article charts a path for criminal sentencing in the wake of the Supreme Court’s recent bombshell decision in Blakely v. Washington. Blakely has thrust sentencing systems across the country into turmoil. But Justice O’Connor was fundamentally wrong when, in her Blakely dissent, she exclaimed that “Over 20 years of sentencing reform are all but lost.” All is most assuredly not lost. Blakely, properly viewed, is an opportunity – albeit a disruptive one – to re-think and improve our sentencing systems.
The Blakely court interpreted the Sixth Amendment to require that any fact, other than the fact of prior conviction, increasing the potential “statutory maximum” punishment – including the punishment available pursuant to an unenhanced sentencing guideline range – be proven to a jury beyond a reasonable doubt. The Supreme Court will soon decide whether this rule applies to the Federal Sentencing Guidelines. Regardless of what the Court chooses to do, Congress and the state legislatures are re-evaluating their sentencing systems and looking for Blakely-compliant options.
This article does not seek to shape the Court’s opinion, or to predict its decision. Instead, it charts a path for legislatures, sentencing commissions, and sentencing scholars. In this article, I set the groundwork for understanding fundamental elements of sentencing, and show the pieces moved by Blakely. I then examine several popular systemic responses to Blakely. Ultimately, I find their various strengths outweighed by their substantial weaknesses.
In the final section, I propose a new approach that would not only survive Blakely’s constitutional commands but can lead us into the next era of sentencing reform. This proposal is not merely a Blakely “fix,” but a proposal that retains fidelity to the concerns and principles that led, over the past 30 years, to the modern sentencing reform revolution, and to structured sentencing systems. I propose a system of Indeterminate Structured Sentencing (“ISS”). ISS is an indeterminate sentencing system (that is, a system that includes parole release authority) in which a Super Commission guides both the sentencing and release functions. An ISS system honors judicial discretion but acknowledges the value of structural checks and balances. It permits high sentences in cases where a judge believes them appropriate while limiting the pressure to increase sentences across the board. ISS offers a balanced approach to sentencing that satisfies Blakely while simultaneously being sensible, just, and grounded in sentencing history, theory and practice
Hoist with their Own Petard?
Full text linkIn 2003, Congress and the Department of Justice tried to increase their control over the United States Sentencing Commission and federal sentencing generally. Congress appeared to have achieved this goal when it passed the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (“PROTECT Act”), which resulted in reduced grounds for downward departures, Congressionally-revised text of the Federal Sentencing Guidelines, and a constrained Sentencing Commission potentially devoid of judges. Yet pro-government interpretations of the PROTECT Act may have been premature because the Supreme Court has now struck down parts of Washington State’s legislatively-enacted sentencing guidelines in Blakely v. Washington. In an effort to save the Federal Sentencing Guidelines from Blakely’s grasp, the Department of Justice has emphasized that they are administratively enacted, in contrast to Washington’s legislatively-enacted guidelines. As a factual matter, however, the PROTECT Act blurred the federal administrative versus legislative distinction. Thus, Congress and the Department – the architects of the PROTECT Act – may find themselves hoist with their own petard
Write On!
Full text linkModern federal appellate review of sentences is a recent phenomenon introduced by the Sentencing Reform Act of 1984. Before United States v. Booker, courts of appeal focused on enforcing the technical rules of the federal sentencing guidelines and did so with (over)zealous enthusiasm. In the new post-Booker world, appellate judges are supposed to review sentences for reasonableness. But how are they supposed to determine what is - or is not - a reasonable sentence? The answer to this puzzle rests in the mind of the District Judge. This short essay argues that the sentencing judge must explain his reasons, and meaningfully document - in the form of sentencing opinions - how he grappled with the relevant statutory factors from the Sentencing Reform Act of 1984 in reaching the sentence imposed
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